Generally, no. Spouses must continue to pay alimony even if they file bankruptcy.
This includes the payment of past due alimony. Section 523 is entitled “Exceptions to discharge.” A person cannot discharge (or get rid) of the debts listed in that section. Subsection (a)(5) states that a spouse cannot discharge a “domestic support obligation.”
The bankruptcy code defines domestic support obligation at 11 U.S.C. 101(14A), and it includes obligations that are in the nature of alimony, maintenance, or support of a spouse or former spouse.
Sometimes, parties will disagree with what is truly “alimony” or a domestic support obligation. For example, what if the state divorce court makes a spouse pay his or her spouses’ attorneys’ fees and costs in the divorce case?
If the bankruptcy court rules the a all or a portion of the alimony is not truly a domestic support obligation, then the spouse could possibly modify that obligation or get rid of it in the bankruptcy case.
Bankruptcy courts look at the substance of the obligation as to whether it constitutes alimony, maintenance, or support, largely disregarding what the parties or the state court called the obligation.
The question is whether the obligation is “in the nature of support.” A debt is “in the nature of support” if, at the time the debt was created, the parties intended the obligation to function as support. The key determination in whether a debt is non- dischargeable alimony or a domestic support obligation under the bankruptcy code is the “intent” of the parties.
Whether a given debt is in the nature of support is an issue of federal law. Cummings v. Cummings, 244 F.3d 1263 (11th Cir. 2001), citing In re Strickland, 90 F.3d 444, 446 (11th Cir. 1996).
Although federal law controls, state law does “provide guidance in determining whether the obligation should be considered ‘support’ under § 523(a)(5).” Id.
In short, the bankruptcy code was written so that a person could not use “the protection of a bankruptcy filing in order to avoid legitimate marital and child support obligations.'” In re Proyect, 503 B.R. 765, 773 (Bankr. N.D. Ga. 2013)(quoting H.R.Rep. No. 103-835, at 54 (Oct. 4, 1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3363). Instead, a spouse can retain a divorce attorney and apply for relief with the state divorce court that originally awarded the alimony in order to reduce or modify the spouse’s alimony obligations in light of the financial hardship.
Bankruptcy and divorce issues are often complicated.
It is important that you retain an attorney if you believe that you might have any bankruptcy or family law issues.
With questions about family law, please contact William S. Foley, Esquire, with William S. Foley, P.A., at www.wfoleylaw.com.
With questions about bankruptcy law, please contact Alfred Villoch, III, Esquire, with Savage, Combs & Villoch, PLLC, at www.savagelaw.us.
Jurisdiction: Hillsborough County, FL Copyright 2009- 2014
William S. Foley, P.A.. All rights reserved.
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Article: Can I stop paying alimony if I file bankruptcy